Ever so often we come across news of sexual harassment on television, in our daily newspapers; you hear it from your friends or colleagues. There are various laws implemented to safeguard people against harassment of all kinds, lawmakers are people we trust when it comes to getting justice, but as per statistics, one in every five lawyers, is sexually harassed, this leaves little hope for the layman. In times like these, it’s become crucial that we fight this evil. Action needs to be taken at all ends – the policy-makers, the implementers of the policy and the victims, each and every party must come forward and provide full cooperation to resolve this issue at hand.

Today, for the sake of this article, we will focus on sexual harassment laws at workplaces. What is your role as an employer to curb or address this issue? What are the measures you will have to take to ensure workplace safety? Also, what is your role as an employee, as someone who has faced or come across sexual harassment? We’ll cover the topic from both the perspectives.

Let’s look at the definition of sexual harassment as per different entities.

The U.S. Equal Opportunity Employment Commission (EEOC), defines workplace sexual harassment as – unwelcome sexual advances or conduct of a sexual nature which unreasonably interferes with the performance of a person’s job or creates an intimidating, hostile, or offensive work environment. Sexual harassment can range from persistent offensive sexual jokes to inappropriate touching to posting offensive material on a bulletin board. Sexual harassment at work is a serious problem and can happen to both women and men. Source

The States Services Commission, New Zealand lays the following criteria for sexual harassment

Sexual harassment is covered by both the Employment Relations Act and the Human Rights Act (section 62). Part 9 of the Employment Relations Act 2000 provides a definition of sexual harassment. The definition and various other provisions relating to sexual harassment are contained in sections 103, 109 and 117.

Sexual harassment can include:

–       personally sexually offensive verbal comments;

–       sexual or smutty jokes;

–       repeated comments or teasing about someone’s alleged sexual activities or private life;

–       persistent, unwelcome social invitations, telephone calls or emails from workmates at work or at home;

–       following someone home from work;

–       offensive hand or body gestures;

–       unwelcome physical contact – e.g. patting, pinching, touching or putting an arm around another person’s body;

–       provocative visual material – e.g. posters of a sexual nature;

–       hints or promises of preferential treatment in exchange for sex, or threats of differential treatment if sexual activity is not offered; and

–       sexual assault and/or rape. Source

Now let’s look at an employer’s role when it comes to sexual harassment investigation and taking disciplinary action.

As an employer, when you get a complaint about sexual harassment from an employee; you must launch a full investigation into the matter, check the facts thoroughly. In failing to do so, the employee will have a direct grievance with you. It is mandatory to keep the investigation confidential due to the sensitive nature of the topic. If you have the power to suspend the employee in question, you can do so after consulting with the employee about the allegations and can take the call based on the graveness of the matter.

The employer will have to provide a written notice to the employee in question and will have to record all the allegations in that written notice. It must also mention the disciplinary action that will be taken if the allegations are proved.

The employer must be careful to always refer and record the matter in alleged terms and not give out a conclusion on the matter. This notice must inform the alleged employee that he/she will have to attend a disciplinary meeting to address the issue and that attendance is mandatory.

When the disciplinary meeting goes into action, you must inform the employee in question the purpose of the meeting. You must give the alleged employee a chance to accept or deny the allegations, in either case, they need to be given an opportunity to give an explanation for their behaviour. Once the explanation is given – whether acceptance or denial, you must notify the alleged employee that you will consider the points/ instances put forth by both parties and will notify them of the decision. At this point, you must put an end to their involvement in the meeting. You must then come to a conclusion, if you think the matter is resolved, you must take the right disciplinary action, which for serious offences can be dismissal. If you are still not sure, it is always better to probe and enquire further. In case of sexual assault or rape, you will have to get the police and other judicial bodies involved in the investigation with the permission of the victim.

Once the appropriate disciplinary action is taken, measures must now be taken to prevent such incidents from reoccurring. This is not only essential for the company’s reputation but is also good for the company morale.

In this case, conducting seminars regarding sexual harassment, in which employees are educated on the topic is vital. Also informing them of the company’s stance on sexual harassment and the consequences can be crucial.

The severity of action will depend on the circumstances, the employer can give a warning, suspend or dismiss, or dismiss without notice based on the severity of the situation, however, all the actions need to follow after a thorough investigation has taken place.

In case you are at the receiving end of the harassment, it is essential to know help is available, and it is your right to seek justice. The first step would be to maintain a record of the grievances and then to notify your manager and the HR of the same. It can be a stressful period, having a confidant can prove useful in such circumstances. It is important to bring these issues to notice of the authorities to stop them from repeating. Here is a step by step guide to help one through the process.

It could also be worth the while of the organisation to conduct training and provide the HR and the legal team courses in employment law to ensure that the correct measures are taken as and when faced with a sexual harassment suit.

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